CASE 235: Sexual Harassment
D. 47.10.15.15, 20-22 (Ulpianus septimo ad edictum)
(15) Si quis virgines appellasset, si tamen ancillari veste vestitas, minus peccare videtur, multo minus, si meretricia veste feminae, non matrum familiarum vestitae fuissent.
si igitur non matronali habitu femina fuerit et quis eam appellavit vel ei comitem abduxit, iniuriarum tenetur.... (20) Appellare est blanda oratione alterius pudicitiam adtemptare: hoc enim non est convicium sed adversus bonos mores adtemptare. (21) Qui turpibus verbis utitur, non temptat pudicitiam, sed iniuriarum tenetur. (22) Aliud est appellare, aliud adsectari: appellat enim, qui sermone pudicitiam adtemptat, adsectatur, qui tacitus frequenter sequitur: adsidua enim frequentia quasi praebet nonnullam infamiam.(Ulpian in the fifty-seventh book on the Edict)
(15) If someone accosted respectable young girls, but they were dressed in slaves’ clothing, he is understood to commit a lesser offense; and a much lesser offense if the women were dressed as prostitutes and not as respectable women. Therefore, if a woman has not been wearing respectable clothing and someone has accosted her or abducted her attendant, he is not liable to the action on outrage (iniuria)....
(20) To accost is to assault another’s chastity with smooth talk. This is not clamor (convicium) but to make an assault contrary to good morals. (21) One who uses foul language does not make an assault on chastity but is liable for iniuria. (22) It is one thing to accost, another to stalk. For one accosts by using speech to assault chastity; one stalks by silently, persistently pursuing. For (a pursuer’s) ceaseless presence virtually ensures appreciable disrepute.
1. Iniuria. The delict of outrage (iniuria) by Ulpian's day had come to include almost any intentional affront to another's social personality. Ulpian is discussing a type of iniuria that dealt with the sexual harassment of women. The three well-defined instances of harassment were accosting (appellare), stalking (adsectari), or abducting an attendant (comitem abducere). The first two gave rise to liability only if performed “contrary to good morals.” What is the precise nature of this offense? Is it a defense to claim that the victim was already unchaste? Paul (D. 47.10.10) implies yes. Do you see why?
2. Accosting. How is accosting—that is, harassment through attempted seduction—distinguished from obscene speech, dirty jokes, and the like? Ulpian makes a defendant liable for “foul language” (turpia verba), but he regards this, not as accosting, but as a more general form of iniuria. Does this make sense? Was a Roman woman's reputation and social profile threatened more by attempted seduction than by other types of coarse behavior? What do you make of the requirement that the accosting be done “contrary to good morals”? Does this exclude all nonamorous encounters? Some amorous ones? Is the woman's consent to the approach relevant?
3. Stalking and Abducting. Is there a potential difference between these two behaviors and accosting, in terms of the harasser's intent? Could either stalking or abducting an attendant be construed as a prelude to rape? Why else would such actions be treated under this subrubric? What is the point of requiring that stalking be “contrary to good morals”? Why in particular is it an offense to abduct an attendant? Ulpian (D.
47.10.15.16), following Labeo, defines an attendant as one “who is appointed to follow someone as a companion.” He adds that this includes slaves who take children to school (paedagogi). “Abducting” means successfully forcing or persuading the attendant to leave the side of the intended target.4. Clothing. Does Ulpian assume distinct types of clothing for slaves, prostitutes, and respectable women? At any rate, does he take for granted that the clothing of these types will be readily distinguishable? Does this detail, together with the offense of abducting an attendant, suggest that the delict primarily aims to protect women of a certain social rank?
5. Sex and Status. In general terms, what does the Case tell us about the status of women in the Roman world? What is the apparent social function of extending such protection to women, and what social image of women does the law presuppose? The delict protects not only women of any age but also adolescent males against homosexual advances; why doesn't it also protect adult men? Is it fair to argue that whereas our law of harassment is chiefly based on the policy goal of equality between the sexes (where harassment is seen as a barrier to this equality), Roman law was based on a policy goal of difference between the sexes (where harassment undermines the “privileged status” of women)?
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